In a recent article published in Arena Online, Jon Altman offered several important correctives to the narratives that have surrounded the destruction in late May of two Juukan Gorge sites belonging to the Puutu Kunti Kurrama and Pinikura (PKKP) people in the Pilbara by mining giant Rio Tinto. In particular, he highlighted the underlying issues with the native title regime as an ostensible means of protecting Indigenous rights to land, and pointed towards the settler-colonial logics of contemporary Australia.
Settler colonialism is primarily about land. Settler-colonial formations are premised on the foundational projection of permanent territorial sovereignty. The clue is in the name: unlike the temporary colonial sojourner, the settler stays. The peculiarities of the sovereign intentions of the settler project, which seeks to establish exclusive territorial sovereignty over expropriated Indigenous lands, produce what Patrick Wolfe described as a ‘logic of elimination’. Access to land is, as Wolfe insisted, the primary motivation for elimination. Settlers—and the settler state—aim to displace the pre-existing (and inconveniently persisting) Indigenous presence in order to establish their own direct connection with the land. In the settler-colonial equation, as Deborah Bird Rose has suggested, ‘to get in the way all the native has to do is stay at home’.
The ongoing confrontation between a settler-colonial logic of elimination and an agentive, opposing Indigenous presence that resists elimination leads to the initiation and replication of a variety of settler-colonial strategies aiming towards the destruction (or at least the displacement) and replacement of the sovereign Indigene. This tendency persists into the present, because the continuing presence of Indigenous peoples within the boundaries of the settler nation poses an enduring challenge to the legitimacy of the settler-colonial order. In Wolfe’s widely cited summation, ‘invasion is a structure not an event’.
The settler contract, through which settler society is produced, is fundamentally premised on a non-encounter. As Carol Pateman suggests, whereas the social contract is at least theoretically founded on citizens’ consent to the surrender of certain rights in return for the state’s protection of others, in settler societies it is ‘settlers alone…[who] conclude the original pact’. As a social relationship, settler colonisation comprises a ‘negative articulation’ that excludes Indigenous peoples altogether.
In Pateman’s reading, all settler societies presuppose a terra nullius, even if this presupposition was thoroughly undermined elsewhere by traditions of treaty-making that have provided Indigenous peoples in other jurisdictions with some limited subsequent recourse to legal and political recognition. This was not the case in Australia, which remains an ‘anomaly’ among the settler-colonial nations in having never recognised nor reconciled with First Nations sovereignties in any form. The necessity of maintaining Indigenous peoples’ absence from the Australian settler-colonial scene is heightened as a result.
As Bruce Buchan recently argued, in spite of ongoing refusals to respect, and efforts to undermine, treaties in other settler-colonial jurisdictions, their very existence nevertheless ‘served to constrain colonial imagination—they made it impossible for colonists to imagine that they had the land to themselves’. In Australia, no such constraints have existed, and settler Australians have been able to imagine the land as ‘something other than it is: empty, untouched, uninhabited, wilderness, unoccupied, hostile, ours’. In reality, these fundamentals of the national imaginary have required extensive and ongoing efforts towards the erasure of Indigenous sovereignties, and any and all evidence thereof.
It has been increasingly difficult to maintain the outright strategies of erasure and disavowal that characterised the great Australian silence in recent decades, in the wake of the revolutions in archaeology, anthropology and history First Nations activism in large part provoked. Yet far from a reversal of preceding attitudes and relations, the post-1967 period, in which settlers have been no longer able to deny or disavow Indigenous existence, has been marked by the development of new strategies that seek to submerge, subsume, or to otherwise evade the implications of Indigenous sovereignties as they are asserted and reasserted by their living bearers.
It is in thiscontext that the destruction of Juukan Gorge 1 and 2 can best be understood.
Ernest Renan famously suggested that forgetting, as much as remembering, is fundamental to all national/ist traditions. This certainly applies in other settler-colonial contexts, where the task has been to undermine, interfere with or eradicate the sovereignty conceded by the Crown in the original act of treaty-making. In settler-colonial Australia, premised as it is on the imagined non-existence of pre-existing and sovereign Indigenous societies, the task has not been to forget, nor even to actively disremember, but instead to erase all traces of Indigenous occupation—of Indigenous sovereignty—at the moment, or better yet before, they appear.
Ben Silverstein has written of the way in which the High Court’s decision in Mabo no. 2, and especially the Keating government’s response to that decision, acted to ‘submerge’ Indigenous sovereignties at the very moment they (re)appeared. And so, when the court ‘overturned’ the terra nullius doctrine in its application to the settler colonisation of Australia, it acted immediately to constrain the obvious implications of that determination. On the question of the Crown’s acquisition of sovereignty, so clearly and fundamentally challenged by the court’s belated recognition of the Meriam people’s pre-existing native title, the court refused to engage in existential questioning and simply ruled the matter beyond its jurisdiction.
Often regarded by small-l liberals as a crowning achievement in the reign of their acerbic hero, Paul Keating, and an important step in his principled march towards a reconciled republic, the introduction of the Native Title Act 1993 (Cth) has been more accurately described by Wolfe as signalling the ‘fulfilment’ rather than the removal of terra nullius. Under the native title regime, Indigenous rights to land have been constructed as both inherently limited and peculiarly fragile. In its requirement that claimants prove their uninterrupted and continuing ‘traditional connection’ with the land in question, for example, the native title regime displaces the burden of proof, and of history, from coloniser to colonised. The implications of this displacement were starkly illustrated by Justice Olney’s infamous conclusion that the ‘tide of history’ had ‘washed away’ the Yorta Yorta’s native title.
As Altman pointed out in relation to the destruction of Juukan Gorge, the Native Title Act ‘quite intentionally’ failed to provide Indigenous peoples with the sought-after right of veto over mineral and other forms of exploration and exploitation on their land. Placing decision-making power with the vested interests of mining companies and government agencies, affirming the Crown’s (and Commonwealth’s) acquisition of sovereignty, guaranteeing existing non-Indigenous interests in land, and radically circumscribing both the number of potential claimants and the implications of their claims, the Mabo decision, and the native title regime that followed, might best be understood in line with Wolfe’s characterisation.
Crucially, the continuation of the destructive activities of contemporary Australia’s extractive economy on Indigenous lands contributes to the ongoing erasure of Indigenous sovereignties the settler project seeks to enact, and maintain. The interruption of Indigenous peoples’ ‘traditional connection’, as with the destruction of evidence thereof, has the effect of contributing to the ‘extinguishment’ of native title and associated rights. This is the context in which the destruction of Juukan Gorge—along with the many other, less widely reported acts of desecration, past and planned—took place, with the endorsement of state and federal governments alike.
The destruction of Juukan Gorge, and the responses that followed—‘half-assed’ non-apologies and all—was not merely a matter of racism-in-action, as Jeff Sparrow seemed to imply. Nor did it simply reflect base electoral calculus, as Mungo MacCallum suggested. Rather, this and other parallel acts of destruction are allowed and excused, and often actively facilitated, by multiple overlapping agencies concerned to displace Indigenous peoples from the land in order that it be ‘opened up’ (to use the language of the frontier) for exploitation. Mining interests and governments work hand-in-glove the further the ends of the settler-colonial project at large: the displacement of sovereign Indigenous peoples from the land in order to render that land available for exploitation and economic gain.
The destruction of Juukan Gorge is the ‘tide of history’ in action.
None of this is to suggest that Rio Tinto was somehow enacting a settler-colonial will on behalf of Australian society when it proceeded to destroy the only inland site showing evidence of continual human occupation through the last ice age, of 46,000 years or more. There are, of course, other factors at play, and the settler–land relation has to a significant extent shifted from one bound up in settler-colonial identity formation through economic exploitation (diggers, bushmen, battlers and ‘the Australian legend’ more broadly) to one over-determined by market forces, where ‘battlers’ are subsidised out of government coffers filled from the activities of international mining conglomerates. As Altman pointed out, there is a ‘direct relationship between the coffers of the state and the extraction of minerals owned by the Crown that is now conferred on Commonwealth, state and territory governments’ that cannot possibly be excluded from consideration here.
It is true to say that Rio Tinto was simply acting in accordance with the profit-making imperative and within the law. What I want to highlight, however, is that the very nature of the heritage protection and native title regimes that are ostensibly there to protect First Nations peoples from precisely the kind of cultural devastation the PKKP people have suffered here—in common with many other Indigenous groups before and since, both within and beyond the current Pilbara hotspot—is itself influenced, if not determined, by the underlying logics of settler colonialism.
It is difficult to imagine a settler-colonial Australia otherwise. While BHP has hit pause on its ongoing path of destruction through the Pilbara in the wake of Juukan Gorge, FMG, Australian Potash, China Shenhua and others appear lined up to continue theirs in the Pilbara and beyond. And the pattern is well established by now: of the 463 applications to destroy or disturb sites of significance to local Aboriginal people lodged by mining companies since mid-2010 in Western Australia alone, not one has been denied. The default setting of the WA government, and those of mining companies and other interests involved, seems ‘stuck on destroy’.
The reputational damage incurred by Rio Tinto may change its corporate behaviour now and into the future, and improvements to heritage protection laws have been promised. Both might be seen to provide grounds for tentative optimism. But unless or until the foundational erasure on which the entire edifice of settler-colonial Australia has been constructed is ultimately overturned, these proposed remedies remain unconvincing in the medium to longer terms, as the notion of BHP’s ‘pause’ implies.
Altman’s proposed restructuring of the native title regime strikes me as simultaneously more urgent and necessary, and correspondingly more difficult to achieve. More fundamentally, respecting and protecting, let alone valuing, the heritage of First Nations peoples in Australia presupposes a recognition and acceptance of Indigenous existence. This in turn implies, and would require, an acknowledgement, and consequent negotiation, of the implications of that existence for the foundations of Australian settler colonialism under the legal fiction of terra nullius.
Of a different settler-colonial context, Yosef Hayim Yerushalmi pondered: ‘Is it possible that the antonym of “forgetting” is not “remembering,” but justice?’ John Howard famously rejected calls for treaty on the grounds that a nation ‘does not make a treaty with itself’. True enough. But neither can a nation legitimately conclude a social contract without the participation or consent of the other party involved. Such a contract is null and void. And to the extent that many First Nations peoples consider themselves just that, Howard’s point was moot as soon as it was made.
Whatever form ‘justice’ might take in contemporary settler-colonial Australia, a grappling with the unfinished business of sovereignty stands as a necessary precursor to its very conception, let alone attainment. It is only by giving up the exclusive claim to sovereignty the originary settler contract brings forth that shared sovereignties might finally be established. This would be to the advantage of all peoples living in the land we now call Australia, and their shared and separate heritages.